Wednesday

Sep 5, 2018 at 12:01 AMSep 26, 2018 at 9:50 AM

The Texas Supreme Court recently decided not to review Lakeway resident Thomas Kilgore’s petition to overturn a Travis County state court decision dismissing his lawsuit against the city over its elections format.

"The Texas Supreme Court denied our petition without prejudice, which means we can refile and that they are not making any determination as to the merits of the case," Kilgore’s attorney, Kevin Terrazas, said about Sunday’s ruling. "We are unsure about what our next steps will be."

In his decision, Sulak ruled in favor of the city, stating the court lacked "jurisdiction," the authority for the court to hear the case and grant a judgment. The lawsuit was dismissed "with prejudice," meaning Kilgore cannot refile the lawsuit.

Following Sulak’s ruling, Terrazas filed a request for further relief from the Texas Supreme Court and said he is asking the highest state court to "tell the city of Lakeway that it cannot perform its elections in violation of the Texas Constitution, state law and the city charter."

The suit alleged the city’s election process violated state law and Lakeway’s city charter by ordering November’s special election to fill a vacant seat and nonvacant position on the City Council by plurality vote, instead of majority vote, and without a place system.

Kilgore requested the court push the election for Council Member Dwight Haley’s seat to May, which is the end of Haley’s three-year term, and conduct the May election by majority vote with a place system for all candidates, meaning each candidate would be elected to specific seats. Additionally, Kilgore requested the court order the November election for former Council Member Jean Hennagin’s seat to be conducted by majority vote.

In 2014, Lakeway residents voted to amend the city charter to reflect three-year terms for council members and a majority vote, meaning a candidate must win a seat by 50 percent of the vote, plus one vote. In April, after being notified by the secretary of state’s office that those changes contradicted the state Constitution, the City Council voted to suspend the 2014 amendment, reverting to an election system with two-year council terms and a plurality vote in which the highest vote-getter wins the seat.

Kilgore’s lawsuit claims the city’s decision to suspend the charter should have been made by a vote of Lakeway residents, thereby taking away his right to vote and denying his ability to decide the system the city will use in future elections.

C. Robert Heath, representing the city of Lakeway and named council members, argued the court could not rule on the lawsuit because Kilgore has not shown "standing," that he has been harmed differently from any other Lakeway resident by the actions of the City Council. Additionally, he said courts have no jurisdiction to interfere with an election process because "it’s a violation of separation of powers" that puts the court into the realm of the legislative branch of government.

Heath said "the whole thing is moot" because the time frame for completing the state’s election requirements for a November ballot is soon. Sept. 4 — after this edition went to press — was the deadline for the city to provide final ballot language to the secretary of state.

The city can make a change to the ballot language by altering only a few words from its proposed ballot for November and allowing only Hennagin’s seat to be filled by the special election, Terrazas said.

Five candidates — including Glenda Foreman Engert, Betty Haley, Laurie Higginbotham, Louis Mastrangelo and Wendi Severance —filed to fill the two open council seats in the at-large November election.

"The city has personally stripped me of my right to vote for charter amendments," Kilgore said on the witness stand Thursday. "This action I’m taking is an opportunity for the city to return to a constitutional path at a very low cost. My right to vote is absolutely priceless."

Lakeway City Manager Steve Jones said Haley’s seat, due to the April reversion back to two-year terms, expired in May and has been serving on the dais in a holdover position that will end in November. The November election will fill the seat that expired in May.

He said the city’s plan is to provide an opportunity for residents to vote on a charter amendment specifying a place system and majority vote for elections. However, a charter amendment can only be approved every two years, requiring the next amendment be made no sooner than 2020, Jones said.

"I think it went very well," he said of the hearing. "Both sides argued their cases."

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